Special Provisions and Exceptions to Fundamental Rights

Armed Forces and Fundamental Rights (Article 33)

Why is this provision needed?

Think practically 👇

• Armed forces, police, paramilitary, intelligence — these are the protectors of internal and external security.
• Their duty demands discipline, obedience, and neutrality.
• If they had unrestricted Fundamental Rights like civilians, discipline could break down.
  👉 Example: If soldiers could freely form trade unions, hold dharnas, or give interviews to the press, it would paralyse military functioning.

Hence, the Constitution empowers Parliament (only Parliament, not state legislatures) to restrict or even abrogate (totally take away) the Fundamental Rights of these forces.

Key Points about Article 33

1. Exclusive power of Parliament → States cannot make such laws.
2. Objective → Ensure proper discharge of duties and strict discipline.
3. Parliamentary laws under Article 33 cannot be challenged in courts on grounds of violating FRs.
4. Examples of such laws:
   • Army Act, 1950
   • Navy Act, 1950
   • Air Force Act, 1950
   • Police Forces (Restriction of Rights) Act, 1966
   • Border Security Force Act, etc.

These laws restrict rights like:

• Freedom of speech (no free interviews about defence matters).
• Right to form associations/unions (no military trade unions).
• Right to join political parties.
• Right to attend demonstrations or protests.

👉 Even non-combatant staff in armed forces (like barbers, cooks, carpenters, bootmakers, tailors, chowkidars) fall under this category.

Special Note: Courts & Armed Forces

• Parliament can even pass a law under Article 33 saying:
  “Court martial decisions (military tribunals) cannot be challenged in SC/HC via writs.”
• Meaning, judicial review can be restricted in the name of discipline.

✨ Essence:
Article 33 shows that security of the nation > individual rights of soldiers.
But this restriction is not arbitrary — only Parliament can do it, ensuring uniformity across India.

Martial Law and Fundamental Rights (Article 34)

What is Martial Law?

• Literally: “Military Rule.”
• Means: Civil administration collapses → Military takes over governance.
• Military authorities make their own rules outside ordinary law and run administration.
• It implies:
  1. Suspension of ordinary courts.
  2. Civilians tried by military tribunals.
  3. Fundamental Rights restricted in affected area.

👉 Note the difference: Military Law = applies only to armed forces. Martial Law = imposed on civilians when law & order breaks down.

Constitutional Basis in India

• Article 34:
  • Empowers Parliament to impose restrictions on Fundamental Rights in areas under Martial Law.
  • Parliament can pass an Indemnity Act → protects govt. servants/any person from legal action for acts done to maintain order under Martial Law.
  • Parliament can also validate punishments, sentences, confiscations done by military authorities.

👉 Indemnity Act = Legal shield → “Whatever was done during Martial Law cannot be challenged later in courts, even if FRs violated.”

Important Points

1. No definition of Martial Law in Constitution. Borrowed from English Common Law.
2. No explicit provision giving executive power to declare Martial Law.
   • But Article 34 implicitly recognises it.
3. Martial Law is justified in extraordinary situations like:
   • War
   • Invasion
   • Rebellion/Insurrection
   • Riots/violent breakdown of law
4. During Martial Law, military authorities have abnormal powers:
   • Restrict citizens’ rights,
   • Punish civilians,
   • Even impose death sentences.
5. Supreme Court ruling: Declaration of Martial Law does not automatically suspend Habeas Corpus.
   • Meaning → even under Martial Law, if someone is unlawfully detained, courts can still be approached.

Martial Law vs National Emergency

Let’s quickly summarise the core differences:

Aspect	Martial Law (Art. 34)	National Emergency (Art. 352)
Effect	Suspends govt & ordinary courts; military runs administration.	Govt & courts continue, but Centre gets overriding powers.
Grounds	Any law & order breakdown (riot, rebellion, insurrection, war).	Only war, external aggression, armed rebellion.
Area	Limited to specific disturbed area.	Whole country or part of it.
Provision in Constitution	Implicit (Article 34).	Explicit (Articles 352–360).
Rights	FRs restricted; civilians subject to military tribunals.	FRs can be suspended (except Arts. 20 & 21).
Parliament’s Role	Can indemnify acts done under Martial Law.	Authorises Centre to legislate over states, extend Parliament’s tenure, etc.

✨ Essence:

• Martial Law = Military takes over, civil administration suspended.
• National Emergency = Civil govt continues, but with extraordinary powers.
• Both restrict Fundamental Rights, but their scope, trigger, and administration are very different.

Article 35 – Power to Make Laws

The Core Idea

• Normally, our Constitution divides legislative powers between Parliament (Union List) and State Legislatures (State List).
• But, for some sensitive matters connected with Fundamental Rights, the Constitution says → Only Parliament shall make laws, not the States.
• Why? To ensure uniformity across the country → so that Fundamental Rights are not diluted or varied from one state to another.

Key Provisions of Article 35

1. Exclusive Power of Parliament

Parliament (not States) can make laws on:

(a) Prescribing residence condition for certain public employment (Article 16).
👉 Example: Originally, Public Employment (Requirement as to Residence) Act, 1957.

(b) Empowering courts (other than SC & HCs) to enforce Fundamental Rights (Article 32).
👉 Till now, no such law has been made.

(c) Restricting/abrogating FRs of Armed Forces, Police, Intelligence, etc. (Article 33).
👉 Example: Army Act, Navy Act, Air Force Act, Police Forces (Restriction of Rights) Act.

(d) Indemnifying officials for acts done under Martial Law (Article 34).
👉 Parliament can pass an Indemnity Act.

2. Power to Prescribe Punishments

Parliament alone can prescribe punishment for offences against FRs like:

• Untouchability (Article 17).
  👉 Law: Protection of Civil Rights Act, 1955.
• Traffic in human beings and forced labour (Article 23).
  👉 Law: Immoral Traffic (Prevention) Act, 1956; Bonded Labour System (Abolition) Act, 1976, etc.

👉 Not only power but obligation → Parliament must enact laws for these offences.

3. Continuation of Pre-Constitution Laws

• Any law already in force on these matters (before 1950) shall continue until Parliament changes or repeals it.

4. Parliament’s Extended Competence

• Article 35 allows Parliament to legislate even on matters falling in State List, if related to FRs mentioned above.
  👉 Example: Police is a State subject, but restrictions on police rights under Article 33 are done only by Parliament.

🔑 Essence of Article 35

• It ensures uniformity + supremacy of Parliament in sensitive matters of Fundamental Rights.
• Prevents states from making their own divergent laws that could weaken or distort FRs.

Present Position of Right to Property

Originally a Fundamental Right

At the time of commencement of the Constitution (1950), Right to Property was one of the seven Fundamental Rights. It was protected under two articles:

• Article 19(1)(f): Guaranteed to every citizen the right to acquire, hold, and dispose of property.
• Article 31: Guaranteed to every person (citizen or non-citizen) that no one shall be deprived of his property except by authority of law.
  • Also empowered the State to acquire/requisition private property, but with two conditions:
    (a) for public purpose, and
    (b) with payment of compensation to the owner.

👉 In simple terms: Citizens had property rights like liberty or equality, and if the State acquired property, it had to pay compensation.

Why Controversial?

From Day One, this right led to continuous clashes between Parliament and Supreme Court.

• Parliament wanted to implement land reforms (like abolition of zamindari, redistribution of land).
• But whenever Parliament passed such laws, landlords approached Supreme Court claiming their Fundamental Right to Property was violated.
• Supreme Court often struck down such laws.
• Parliament responded by amending the Constitution again and again to protect land reform laws from judicial review.

👉 This tug-of-war led to several constitutional amendments — 1st, 4th, 7th, 25th, 39th, 40th, and 42nd.

• During these, new provisions like Articles 31A, 31B, 31C were inserted to shield certain laws from being challenged in court.
• The crux of litigation was always: Is the State bound to pay full compensation for acquired property or not?

The Turning Point – 44th Amendment Act, 1978

Finally, to end this endless conflict, Parliament abolished Right to Property as a Fundamental Right.

• Article 19(1)(f) → Deleted.
• Article 31 → Deleted.
• A new Article 300A was added in Part XII (not Part III).

Article 300A: “No person shall be deprived of his property except by authority of law.”

👉 So, Right to Property still exists, but now only as a Legal / Constitutional Right — not a Fundamental Right.

Implications of the Change

Now that Right to Property is no longer a Fundamental Right:

(a) It can be regulated/curtailed/modified by an ordinary law of Parliament → no need for constitutional amendment.
(b) It protects private property only against executive action (govt. officers), not against legislative action (laws made by Parliament).
(c) If violated, an aggrieved person cannot directly move Supreme Court under Article 32.

• Remedy: High Court under Article 226.
  (d) No guaranteed right to compensation if property is acquired/requisitioned by State.

Two Exceptions – Compensation Still Guaranteed

Even after its downgrading, two situations still mandate compensation:

1. Article 30: If the State acquires property of a minority educational institution.
   (Added by 44th Amendment Act, 1978).
2. Article 31A: If the State acquires land under personal cultivation of a person, and the land is within statutory ceiling limits.
   (Added by 17th Amendment Act, 1964).

Articles 31A, 31B, 31C – Still in Force

Even though Article 31 was deleted, the special provisions created earlier to shield land reform and socio-economic laws (31A, 31B, 31C) were retained.
👉 They remain as exceptions to Fundamental Rights.

✨ Essence

• Originally: Right to Property = Fundamental Right.
• After 44th Amendment (1978): Right to Property = Legal / Constitutional Right under Article 300A.
• Impact: Easier for the State to pursue land reforms and welfare measures, with fewer legal hurdles.

👉 For exam prep, you can remember it in one line:
“Right to Property is no longer a Fundamental Right (post-1978), but it remains a Constitutional Right under Article 300A.”

Exceptions to Fundamental Rights

Article 31A – Saving of Laws Providing for Acquisition of Estates, etc.

• Purpose: To protect land reform laws and certain socio-economic measures.
• Normally, such laws were challenged as violating Article 14 (Equality) and Article 19 (Freedoms).
• Article 31A says → such laws cannot be declared void just because they violate 14 or 19.

It protects 5 categories of laws:

(a) Acquisition of estates (land, zamindari abolition, tenancy reforms).
(b) Taking over management of properties by State.
(c) Amalgamation of corporations.
(d) Extinguishment/modification of rights of directors/shareholders.
(e) Extinguishment/modification of mining leases.

🔑 Safeguard: If it is a State law, it must be reserved for President’s assent → only then it gets immunity.

Special case: If the land acquired is under personal cultivation and within ceiling limits, then compensation at market value must be given.

Article 31B – Validation of Acts and Regulations (Ninth Schedule)

• Article 31B created the Ninth Schedule (via 1st Amendment, 1951).
• Any law placed in Ninth Schedule = immune from challenge on ground of violating Fundamental Rights.
• Scope is wider than 31A → protects against all FRs, not just Articles 14 & 19.

But… a turning point 🚨

• In I.R. Coelho Case (2007), Supreme Court said:
  • Ninth Schedule does not give blanket immunity.
  • Laws placed in Ninth Schedule after 24 April 1973 (Kesavananda Bharati judgement) can still be challenged.
  • If such laws violate Articles 14, 15, 19, 21 or the Basic Structure, courts can strike them down.

👉 Thus, judicial review (a basic feature) cannot be removed even through Ninth Schedule.

📌 Originally (1951): only 13 laws in Ninth Schedule.
📌 As of 2016: around 282 laws (mostly land reforms & zamindari abolition).

Article 31C – Saving of Laws Giving Effect to Certain Directive Principles

• Inserted by 25th Amendment, 1971.
• Said: Laws made to implement Directive Principles under Article 39(b) & 39(c) cannot be challenged for violating Articles 14 or 19.

👉 Meaning: Directive Principles (socialism, equitable distribution of resources) > Fundamental Rights (equality & freedoms).

But there was a controversial second part:

• If a law declares it is “for giving effect to such policy,” courts cannot even question it.
• In Kesavananda Bharati (1973): SC struck down this part as unconstitutional (as it destroys judicial review, which is a basic feature).

So only first part of Article 31C survived.

The 42nd Amendment (1976)

• Expanded Article 31C to cover all Directive Principles (Part IV), not just 39(b), (c).
• Effect: Any law made to implement any DPSP could override Articles 14 & 19.

👉 In Minerva Mills Case (1980): SC struck this down as unconstitutional.

• Court said → Balance between Fundamental Rights & DPSPs is a part of Basic Structure.
• Parliament cannot destroy this balance.

✨ Essence

• Article 31A → Protects land reforms & related laws from being struck down under Articles 14 & 19.
• Article 31B → Laws in Ninth Schedule immune, but post-1973 still subject to Basic Structure review.
• Article 31C → Certain laws implementing 39(b) & (c) DPSPs get protection, but its blanket extension (42nd Amendment) was struck down.

👉 In short: Parliament tried multiple times to give primacy to socio-economic reforms (DPSPs) over individual freedoms (FRs). Supreme Court responded by creating the Basic Structure Doctrine to maintain balance.